Brian Martin presents the case against intellectual property,
approaching the issue from a different background to most of us in the
free software movement. (You'll note that Martin confuses "freeware",
"free software", and "public domain", but that's my fault, since I should
have picked this up in my proofreading.)

Against intellectual property

There
is a strong case for opposing intellectual property. Among other things, it
often retards innovation and exploits Third World peoples. Most of the usual
arguments for intellectual property do not hold up under scrutiny. In
particular, the metaphor of the marketplace of ideas provides no justification
for ownership of ideas. The alternative to intellectual property is that
intellectual products not be owned, as in the case of everyday language.
Strategies against intellectual property include civil disobedience, promotion
of non-owned information, and fostering of a more cooperative society.

The
original rationale for copyrights and patents was to foster artistic and
practical creative work by giving a short-term monopoly over certain uses of
the work. This monopoly was granted to an individual or corporation by
government. The government's power to grant a monopoly is corrupting. The
biggest owners of intellectual property have sought to expand it well beyond
any sensible rationale.

There
are several types of intellectual property or, in other words, ownership of
information, including copyright, patents, trademarks, trade secrets, design
rights and plant breeders' rights. Copyright covers the expression of
ideas such as in writing, music and pictures. Patents cover inventions, such as
new substances or articles and industrial processes. Trademarks are symbols
associated with a good, service or company. Trade secrets cover confidential
business information. Design rights cover different ways of presenting the
outward appearance of things. Plant breeders' rights grant ownership of
novel, distinct and stable plant varieties that are "invented."

The
type of property that is familiar to most people is physical objects. People
own clothes, cars, houses and land. But there has always been a big problem
with owning ideas. Exclusive use or control of ideas or the way they are
expressed doesn't make nearly as much sense as the ownership of physical
objects.

Many
physical objects can only be used by one person at a time. If one person wears
a pair of shoes, no one else can wear them at the same time. (The person who
wears them often owns them, but not always.) This is not true of intellectual
property. Ideas can be copied over and over, but the person who had the
original copy still has full use of it. Suppose you write a poem. Even if a
million other people have copies and read the poem, you can still read the poem
yourself. In other words, more than one person can use an idea - a poem, a
mathematical formula, a tune, a letter - without reducing other
people's use of the idea. Shoes and poems are fundamentally different in
this respect.

Technological
developments have made it cheaper and easier to make copies of information.
Printing was a great advance: it eliminated the need for hand copying of
documents. Photocopying and computers have made it even easier to make copies
of written documents. Photography and sound recordings have done the same for
visual and audio material. The ability to protect intellectual property is
being undermined by technology. Yet there is a strong push to expand the scope
of ownership of information.

This
chapter outlines the case against intellectual property. I begin by mentioning
some of the problems arising from ownership of information. Then I turn to
weaknesses in its standard justifications. Next is an overview of problems with
the so-called "marketplace of ideas," which has important links
with intellectual property. Finally, I outline some alternatives to
intellectual property and some possible strategies for moving towards them.

Problems with intellectual property

Governments
generate large quantities of information. They produce statistics on
population, figures on economic production and health, texts of laws and
regulations, and vast numbers of reports. The generation of this information is
paid for through taxation and, therefore, it might seem that it should be
available to any member of the public. But in some countries, such as Britain
and Australia, governments claim copyright in their own legislation and
sometimes court decisions. Technically, citizens would need permission to copy
their own laws. On the other hand, some government-generated information,
especially in the US, is turned over to corporations that then sell it to
whomever can pay. Publicly funded information is "privatised" and
thus not freely available.
[1]

The
idea behind patents is that the fundamentals of an invention are made public
while the inventor for a limited time has the exclusive right to make, use or
sell the invention. But there are quite a few cases in which patents have been
used to suppress innovation.
[2]
Companies may take out a patent, or buy someone else's patent, in order
to inhibit others from applying the ideas. From its beginning in 1875, the US
company AT&T collected patents in order to ensure its monopoly on
telephones. It slowed down the introduction of radio for some 20 years. In a
similar fashion, General Electric used control of patents to retard the
introduction of fluorescent lights, which were a threat to its sales of
incandescent lights. Trade secrets are another way to suppress technological
development. Trade secrets are protected by law but, unlike patents, do not
have to be published openly. They can be overcome legitimately by independent
development or reverse engineering.

Biological
information can now be claimed as intellectual property. US courts have ruled
that genetic sequences can be patented, even when the sequences are found
"in nature," so long as some artificial means are involved in
isolating them. This has led companies to race to take out patents on numerous
genetic codes. In some cases, patents have been granted covering all transgenic
forms of an entire species, such as soybeans or cotton, causing enormous
controversy and sometimes reversals on appeal. One consequence is a severe
inhibition on research by non-patent holders. Another consequence is that
transnational corporations are patenting genetic materials found in Third World
plants and animals, so that some Third World peoples actually have to pay to
use seeds and other genetic materials that have been freely available to them
for centuries.

More
generally, intellectual property is one more way for rich countries to extract
wealth from poor countries. Given the enormous exploitation of poor peoples
built into the world trade system, it would only seem fair for ideas produced
in rich countries to be provided at no cost to poor countries. Yet in the GATT
negotiations, representatives of rich countries, especially the US, have
insisted on strengthening intellectual property rights.
[3]
Surely there is no better indication that intellectual property is primarily of
value to those who are already powerful and wealthy.

The
potential financial returns from intellectual property are said to provide an
incentive for individuals to create. In practice, though, most creators do not
actually gain much benefit from intellectual property. Independent inventors
are frequently ignored or exploited. When employees of corporations and
governments have an idea worth protecting, it is usually copyrighted or
patented by the organisation, not the employee. Since intellectual property can
be sold, it is usually the rich and powerful who benefit. The rich and
powerful, it should be noted, seldom contribute much intellectual labour to the
creation of new ideas.

These
problems - privatisation of government information, suppression of patents,
ownership of genetic information and information not owned by the true
creator - are symptoms of a deeper problem with the whole idea of
intellectual property. Unlike goods, there are no physical obstacles to
providing an abundance of ideas. (Indeed, the bigger problem may be an
oversupply of ideas.) Intellectual property is an attempt to create an
artificial scarcity in order to give rewards to a few at the expense of the
many. Intellectual property aggravates inequality. It fosters competitiveness
over information and ideas, whereas cooperation makes much more sense. In the
words of Peter Drahos, researcher on intellectual property, "Intellectual
property is a form of private sovereignty over a primary
good - information."
[4]

Here
are some examples of the abuse of power that has resulted from the power to
grant sovereignty over information.

The neem tree is used in India in the areas of medicine, toiletries,
contraception, timber, fuel and agriculture. Its uses have been developed over
many centuries but never patented. Since the mid 1980s, US and Japanese
corporations have taken out over a dozen patents on neem-based materials. In
this way, collective local knowledge developed by Indian researchers and
villagers has been expropriated by outsiders who have added very little to the
process.
[5]

Charles M. Gentile is a US photographer who for a decade had made and sold
artistic posters of scenes in Cleveland, Ohio. In 1995 he made a poster of the
I. M. Pei building, which housed the new Rock and Roll Hall of Fame and Museum.
This time he got into trouble. The museum sued him for infringing the trademark
that it had taken out on its own image. If buildings can be registered as
trademarks, then every painter, photographer and film-maker might have to seek
permission and pay fees before using the images in their art work. This is
obviously contrary to the original justification for intellectual property,
which is to encourage the production of artistic works.

Prominent designer Victor Papanek writes: "...there is something
basically wrong with the whole concept of patents and copyrights. If I design a
toy that provides therapeutic exercise for handicapped children, then I think
it is unjust to delay the release of the design by a year and a half, going
through a patent application. I feel that ideas are plentiful and cheap, and it
is wrong to make money from the needs of others. I have been very lucky in
persuading many of my students to accept this view. Much of what you will find
as design examples throughout this book has never been patented. In fact, quite
the opposite strategy prevails: in many cases students and I have made measured
drawings of, say, a play environment for blind children, written a description
of how to build it simply, and then mimeographed drawings and all. If any
agency, anywhere, will write in, my students will send them all the
instructions free of charge."
[6]

In 1980, a book entitled
Documents
on Australian Defence and Foreign Policy 1968-1975
was published by George Munster and Richard Walsh. It reproduced many secret
government memos, briefings and other documents concerning Australian
involvement in the Vietnam war, events leading up to the Indonesian invasion of
East Timor, and other issues. Exposure of this material deeply embarrassed the
Australian government. In an unprecedented move, the government issued an
interim injunction, citing both the Crimes Act and the Copyright Act. The
books, just put on sale, were impounded. Print runs of two major newspapers
with extracts from the book were also seized.

The
Australian High Court ruled that the Crimes Act did not apply, but that the
material was protected by copyright held by the government. Thus copyright, set
up to encourage artistic creation, was used to suppress dissemination of
documents for whose production copyright was surely no incentive. Later,
Munster and Walsh produced a book using summaries and short quotes in order to
present the information.
[7]

Scientology is a religion in which only certain members at advanced stages of
enlightenment have access to special information, which is secret to others.
Scientology has long been controversial, with critics maintaining that it
exploits members. Some critics, including former Scientologists, have put
secret documents from advanced stages on the Internet. In response, church
officials invoked copyright. Police have raided homes of critics, seizing
computers, disks and other equipment. This is all rather curious, since the
stated purpose of copyright is not to hide information but rather to stimulate
production of new ideas.
[8]

The
following examples show that the uncertainty of intellectual property law
encourages ambit claims that seem to be somewhat plausible. Some targets of
such claims give in for economic reasons.

Ashleigh Brilliant is a "professional epigrammatist." He creates
and copyrights thousands of short sayings, such as "Fundamentally, there
may be no basis for anything." When he finds someone who has
"used" one of his epigrams, he contacts them demanding a payment
for breach of copyright. Television journalist David Brinkley wrote a book,
Everyone
is Entitled to My Opinion,
the title of which he attributed to a friend of his daughter. Brilliant
contacted Brinkley about copyright violation. Random House, Brinkley's
publisher, paid Brilliant $1000 without contesting the issue, perhaps because
it would have cost more than this to contest it.
[9]

Lawyer Robert Kunstadt has proposed that athletes could patent their sporting
innovations, such as the "Fosbury flop" invented by high jumper
Dick Fosbury. This might make a lot of money for a few stars. It would also
cause enormous disputes. Athletes already have a tremendous incentive to
innovate if it helps their performance. Patenting of basketball moves or
choreography steps would serve mainly to limit the uptake of innovations and
would mainly penalise those with fewer resources to pay royalties.

The US National Basketball Association has sued in court for the exclusive
right to transmit the scores of games as they are in progress. It had one
success but lost on appeal.
[10]

A Scottish newspaper,
The
Shetland Times,
went to court to stop an online news service from making a hypertext link to
its web site. If hypertext links made without permission were made illegal,
this would undermine the World Wide Web. [11]

These
examples show that intellectual property has become a means for exerting power
in ways quite divorced from its original aim - promoting the creation and
use of new ideas.

Critique of standard justifications

Edwin
C. Hettinger has provided an insightful critique of the main arguments used to
justify intellectual property, so it is worthwhile summarising his analysis.
[12]
He begins by noting the obvious argument against intellectual property, namely
that sharing intellectual objects still allows the original possessor to use
them. Therefore, the burden of proof should lie on those who argue for
intellectual property.

The
first argument for intellectual property is that people are entitled to the
results of their labour. Hettinger's response is that not all the value
of intellectual products is due to labour. Nor is the value of intellectual
products due to the work of a single labourer, or any small group. Intellectual
products are social products.

Suppose
you have written an essay or made an invention. Your intellectual work does not
exist in a social vacuum. It would not have been possible without lots of
earlier work - both intellectual and nonintellectual - by many other
people. This includes your teachers and parents. It includes the earlier
authors and inventors who provided the foundation for your contribution. It
also includes the many people who discussed and used ideas and techniques, at
both theoretical and practical levels, and provided a cultural foundation for
your contribution. It includes the people who built printing presses, laid
telephone cables, built roads and buildings and in many other ways contributed
to the "construction" of society. Many other people could be
mentioned. The point is that any piece of intellectual work is always built on
and is inconceivable without the prior work of numerous people.

Hettinger
points out that the earlier contributors to the development of ideas are not
present. Today's contributor therefore cannot validly claim full credit.

Is
the market value of a piece of an intellectual product a reasonable indicator
of a person's contribution? Certainly not. As noted by Hettinger and as
will be discussed in the next section, markets only work once property rights
have been established, so it is circular to argue that the market can be used
to measure intellectual contributions. Hettinger summarises this point in this
fashion: "The notion that a laborer is naturally entitled as a matter of
right to receive the market value of her product is a myth. To what extent
individual laborers should be allowed to receive the market value of their
products is a question of social policy."

A
related argument is that people have a right to possess and personally use what
they develop. Hettinger's response is that this doesn't show that
they deserve market values, nor that they should have a right to prevent others
from using the invention.

A
second major argument for intellectual property is that people
deserve
property rights because of their labour. This brings up the general issue of
what people deserve, a topic that has been analysed by philosophers. Their
usual conclusions go against what many people think is "common
sense." Hettinger says that a fitting reward for labour should be
proportionate to the person's effort, the risk taken and moral
considerations. This sounds all right - but it is not proportionate to the
value of the results of the labour, whether assessed through markets or by
other criteria. This is because the value of intellectual work is affected by
things not controlled by the worker, including luck and natural talent.
Hettinger says "A person who is born with extraordinary natural talents,
or who is extremely lucky,
deserves
nothing on the basis of these characteristics."

A
musical genius like Mozart may make enormous contributions to society. But
being born with enormous musical talents does not provide a justification for
owning rights to musical compositions or performances. Likewise, the labour of
developing a toy like Teenage Mutant Ninja Turtles that becomes incredibly
popular does not provide a justification for owning rights to all possible uses
of turtle symbols.

What
about a situation where one person works hard at a task and a second person
with equal talent works less hard? Doesn't the first worker deserve more
reward? Perhaps so, but property rights do not provide a suitable mechanism for
allocating rewards. The market can give great rewards to the person who
successfully claims property rights for a discovery, with little or nothing for
the person who just missed out.

A
third argument for intellectual property is that private property is a means
for promoting privacy and a means for personal autonomy. Hettinger responds
that privacy is protected by not revealing information, not by owning it. Trade
secrets cannot be defended on the grounds of privacy, because corporations are
not individuals. As for personal autonomy, copyrights and patents aren't
required for this.

A
fourth argument is that rights in intellectual property are needed to promote
the creation of more ideas. The idea is that intellectual property gives
financial incentives to produce ideas. Hettinger thinks that this is the only
decent argument for intellectual property. He is still somewhat sceptical,
though. He notes that the whole argument is built on a contradiction, namely
that in order to promote the development of ideas, it is necessary to reduce
people's freedom to use them. Copyrights and patents may encourage new
ideas and innovations, but they also restrict others from using them freely.

This
argument for intellectual property cannot be resolved without further
investigation. Hettinger says that there needs to be an investigation of how
long patents and copyrights should be granted, to determine an optimum period
for promoting intellectual work.

For
the purposes of technological innovation, information becomes more valuable
when augmented by new information: innovation is a collective process. If firms
in an industry share information by tacit cooperation or open collaboration,
this speeds innovation and reduces costs. Patents, which put information into
the market and raise information costs, actually slow the innovative process.
[13]

It
should be noted that although the scale and pace of intellectual work has
increased over the past few centuries, the duration of protection of
intellectual property has not been reduced, as might be expected, but greatly
increased. The US government did not recognise foreign copyrights for much of
the 1800s. Where once copyrights were only for a period of a few decades, they
now may be for the life of the author plus 70 years. In many countries,
chemicals and pharmaceuticals were not patentable until recently. This suggests
that even if intellectual property can be justified on the basis of fostering
new ideas, this is not the driving force behind the present system of
copyrights and patents. After all, few writers feel a greater incentive to
write and publish just because their works are copyrighted for 70 years after
they die, rather than just until they die.

Of
various types of intellectual property, copyright is especially open for
exploitation. Unlike patents, copyright is granted without an application and
lasts far longer. Originally designed to encourage literary and artistic work,
it now applies to every memo and doodle and is more relevant to business than
art. There is no need to encourage production of business correspondence, so
why is copyright applied to it?
[14]

Intellectual
property is built around a fundamental tension: ideas are public but creators
want private returns. To overcome this tension, a distinction developed between
ideas and their expression. Ideas could not be copyrighted but their expression
could. This peculiar distinction was tied to the romantic notion of the
autonomous creator who somehow contributes to the common pool of ideas without
drawing from it. This package of concepts apparently justified authors in
claiming residual rights - namely copyright - in their ideas after
leaving their hands, while not giving manual workers any rationale for claiming
residual rights in
their
creations.[15]
In practice, though, the idea-expression distinction is dubious and few of the
major owners of intellectual property have the faintest resemblance to romantic
creators.

The marketplace of ideas

The
idea of intellectual property has a number of connections with the concept of
the marketplace of ideas, a metaphor that is widely used in discussions of free
speech. To delve a bit more deeply into the claim that intellectual property
promotes development of new ideas, it is therefore helpful to scrutinise the
concept of the marketplace of ideas.

The
image conveyed by the marketplace of ideas is that ideas compete for acceptance
in a market. As long as the competition is fair - which means that all
ideas and contributors are permitted access to the marketplace - then good
ideas will win out over bad ones. Why? Because people will recognise the truth
and value of good ideas. On the other hand, if the market is constrained, for
example by some groups being excluded, then certain ideas cannot be tested and
examined and successful ideas may not be the best ideas.

Logically,
there is no reason why a marketplace of ideas has to be a marketplace of
owned
ideas: intellectual property cannot be strictly justified by the marketplace of
ideas. But because the marketplace metaphor is an economic one, there is a
strong tendency to link intellectual property with the marketplace of ideas. As
discussed later, there is a link between these two concepts, but not in the way
their defenders usually imagine.

There
are plenty of practical examples of the failure of the marketplace of ideas.
Groups that are stigmatised or that lack power seldom have their viewpoints
presented. This includes ethnic minorities, prisoners, the unemployed, manual
workers and radical critics of the status quo, among many others. Even when
such groups organise themselves to promote their ideas, their views are often
ignored while the media focus on their protests, as in the case of peace
movement rallies and marches.

Demonstrably,
good ideas do not always win out in the marketplace of ideas. To take one
example, the point of view of workers is frequently just as worthy as that of
employers. Yet there is an enormous imbalance in the presentation of their
respective viewpoints in the media. One result is that quite a few ideas that
happen to serve the interests of employers at the expense of workers - such
as that the reason people don't have jobs is because they aren't
trying hard enough to find them - are widely accepted although they are
rejected by virtually all informed analysts.

There
is a simple and fundamental reason for the failure of the marketplace of ideas:
inequality, especially economic inequality.
[16]
Perhaps in a group of people sitting in a room discussing an issue, there is
some prospect of a measured assessment of different ideas. But if these same
people are isolated in front of their television sets, and one of them owns the
television station, it is obvious that there is little basis for testing of
ideas. The reality is that powerful and rich groups can promote their ideas
with little chance of rebuttal from those with different perspectives. As
described in chapter 2, the mass media are powerful enterprises that promote
their own interests as well as those of governments and corporations.

In
circumstances where participants are approximate equals, such as intellectual
discussion among peers in an academic discipline, then the metaphor of
competition of ideas has some value. But ownership of media or ideas is hardly
a prerequisite for such discussion. It is the equality of power that is
essential. To take one of many possible examples, when employees in
corporations lack the freedom to speak openly without penalty they cannot be
equal participants in discussions (see chapter 5).

Some
ideas are good - in the sense of being valuable to society - but are
unwelcome. Some are unwelcome to powerful groups, such as that governments and
corporations commit horrific crimes or that there is a massive trade in
technologies of torture and repression that needs to be stopped. Others are
challenging to much of the population, such as that imprisonment does not
reduce the crime rate or that financial rewards for good work on the job or
grades for good schoolwork are counterproductive.
[17]
(Needless to say, individuals might disagree with the examples used here. The
case does not rest on the examples themselves, but on the existence of some
socially valuable ideas that are unwelcome and marginalised.) The marketplace
of ideas simply does not work to treat such unwelcome ideas with the
seriousness they deserve. The mass media try to gain audiences by pleasing
them, not by confronting them with challenging ideas.
[18]

The
marketplace of ideas is often used to justify free speech. The argument is that
free speech is necessary in order for the marketplace of ideas to operate: if
some types of speech are curtailed, certain ideas will not be available on the
marketplace and thus the best ideas will not succeed. This sounds plausible.
But it is possible to reject the marketplace of ideas while still defending
free speech on the grounds that it is essential to human liberty.

If
the marketplace of ideas doesn't work, what is the solution? The usual
view is that governments should intervene to ensure that all groups have fair
access to the media. But this approach, based on promoting equality of
opportunity, ignores the fundamental problem of economic inequality. Even if
minority groups have some limited chance to present their views in the mass
media, this can hardly compensate for the massive power of governments and
corporations to promote their views. In addition, it retains the role of the
mass media as the central mechanism for disseminating ideas. So-called reform
proposals either retain the status quo or introduce government censorship.

Underlying
the market model is the idea of self-regulation: the "free market"
is supposed to operate without outside intervention and, indeed, to operate
best when outside intervention is minimised. In practice, even markets in goods
do not operate autonomously: the state is intimately involved in even the
freest of markets. In the case of the marketplace of ideas, the state is
involved both in shaping the market and in making it possible, for example by
promoting and regulating the mass media. The world's most powerful state,
the US, has been the driving force behind the establishment of a highly
protectionist system of intellectual property, using power politics at GATT,
the General Agreement on Tariffs and Trade.

Courts
may use the rhetoric of the marketplace of ideas but actually interpret the law
to support the status quo. For example, speech is treated as free until it
might actually have some consequences. Then it is curtailed when it allegedly
presents a "clear and present danger," such as when peace activists
expose information supposedly threatening to "national security".
But speech without action is pointless. True liberty requires freedom to
promote one's views in practice.
[19]
Powerful groups have the ability to do this. Courts only intervene when others
try to do the same.

As
in the case of trade generally, a property-based "free market"
serves the interests of powerful producers. In the case of ideas, this includes
governments and corporations plus intellectuals and professionals linked with
universities, entertainment, journalism and the arts. Against such an array of
intellectual opinion, it is very difficult for other groups, such as manual
workers, to compete.
[20]
The marketplace of ideas is a biased and artificial market that mostly serves
to fine-tune relations between elites and provide them with legitimacy.
[21]

The
implication of this analysis is that intellectual property cannot be justified
on the basis of the marketplace of ideas. The utilitarian argument for
intellectual property is that ownership is necessary to stimulate production of
new ideas, because of the financial incentive. This financial incentive is
supposed to come from the market, whose justification is the marketplace of
ideas. If, as critics argue, the marketplace of ideas is flawed by the presence
of economic inequality and, more fundamentally, is an artificial creation that
serves powerful producers of ideas and legitimates the role of elites, then the
case for intellectual property is unfounded. Intellectual property can only
serve to aggravate the inequality on which it is built.

The alternative

The
alternative to intellectual property is straightforward: intellectual products
should not be owned. That means not owned by individuals, corporations,
governments, or the community as common property. It means that ideas are
available to be used by anyone who wants to.

One
example of how this might operate is language, including the words, sounds and
meaning systems with which we communicate every day. Spoken language is free
for everyone to use. (Actually, corporations do control bits of language
through trademarks and slogans.)

Another
example is scientific knowledge. Scientists do research and then publish their
results. A large proportion of scientific knowledge is public knowledge. There
are some areas of science that are not public, such as classified military
research. It is usually argued that the most dynamic parts of science are those
with the least secrecy. Open ideas can be examined, challenged, modified and
improved. To turn scientific knowledge into a commodity on the market, as is
happening with genetic engineering, arguably inhibits science.

Few
scientists complain that they do not own the knowledge they produce. Indeed,
they are much more likely to complain when corporations or governments try to
control dissemination of ideas. Most scientists receive a salary from a
government, corporation or university. Their livelihoods do not depend on
royalties from published work.

University
scientists have the greatest freedom. The main reasons they do research are for
the intrinsic satisfaction of investigation and discovery - a key
motivation for many of the world's great scientists - and for
recognition by their peers. To turn scientific knowledge into intellectual
property would dampen the enthusiasm of many scientists for their work.
However, as governments reduce their funding of universities, scientists and
university administrations increasingly turn to patents as a source of income.

Language
and scientific knowledge are not ideal; indeed, they are often used for harmful
purposes. It is difficult to imagine, though, how turning them into property
could make them better.

The
case of science shows that vigorous intellectual activity is quite possible
without intellectual property, and in fact that it may be vigorous precisely
because information is not owned. But there are lots of areas that, unlike
science, have long operated with intellectual property as a fact of life. What
would happen without ownership of information? Many objections spring to mind.

Plagiarism

Many
intellectual workers fear being plagiarised and many of them think that
intellectual property provides protection against this. After all, without
copyright, why couldn't someone put their name on your essay and publish
it? Actually, copyright provides very little protection against plagiarism.
[22]
So-called "moral rights" of authors to be credited are backed by
law in many countries but are an extremely cumbersome way of dealing with
plagiarism.

Plagiarism
means using the ideas of others without adequate acknowledgment. There are
several types of plagiarism. One is plagiarism of ideas: someone takes your
original idea and, using different expression, presents it as their own.
Copyright provides no protection at all against this form of plagiarism.
Another type of plagiarism is word-for-word plagiarism, where someone takes the
words you've written - a book, an essay, a few paragraphs or even
just a sentence - and, with or without minor modifications, presents them
as their own. This sort of plagiarism
is
covered by copyright - assuming that you hold the copyright. In many cases,
copyright is held by the publisher, not the author.

In
practice, plagiarism goes on all the time, in various ways and degrees,
[23]
and copyright law is hardly ever used against it. The most effective challenge
to plagiarism is not legal action but publicity. At least among authors,
plagiarism is widely condemned. For this reason, and because they seek to give
credit where it's due, most writers do take care to avoid plagiarising.

There
is an even more fundamental reason why copyright provides no protection against
plagiarism: the most common sort of plagiarism is built into social
hierarchies. Government and corporate reports are released under the names of
top bureaucrats who did not write them; politicians and corporate executives
give speeches written by underlings. These are examples of a pervasive
misrepresentation of authorship in which powerful figures gain credit for the
work of subordinates.
[24]
Copyright, if it has any effect at all, reinforces rather than challenges this
sort of institutionalised plagiarism.

Royalties

What
about all the writers, inventors and others who depend for their livelihood on
royalties? First, it should be mentioned that only a very few individuals make
enough money from royalties to live on. For example, there are probably only a
few hundred self-employed writers in the US.
[25]
Most of the rewards from intellectual property go to a few big companies. But
the question is still a serious one for those intellectual workers who depend
on royalties and other payments related to intellectual property.

The
alternative in this case is some reorganisation of the economic system. Those
few currently dependent on royalties could instead receive a salary, grant or
bursary, just as most scientists do.

Getting
rid of intellectual property would reduce the incomes of a few highly
successful creative individuals, such as author Agatha Christie, composer
Andrew Lloyd Webber and filmmaker Steven Spielberg. Publishers could reprint
Christie's novels without permission, theatre companies could put on
Webber's operas whenever they wished and Spielberg's films could be
copied and screened anywhere. Jurassic Park and Lost World T-shirts, toys and
trinkets could be produced at will. This would reduce the income of and, to
some extent, the opportunities for artistic expression by these individuals.
But there would be economic resources released: there would be more money
available for other creators. Christie, Webber and Spielberg might be just as
popular without intellectual property to channel money to them and their family
enterprises.

The
typical creative intellectual is actually worse off due to intellectual
property. Consider an author who brings in a few hundred or even a few thousand
dollars of royalty income per year. This is a tangible income, which creators
value for its monetary and symbolic value. But this should be weighed against
payments of royalties and monopoly profits when buying books, magazines, CDs
and computer software.

Many
of these costs are invisible. How many consumers, for example, realise how much
they are paying for intellectual property when buying prescription medicines,
paying for schools (through fees or taxes), buying groceries or listening to a
piece of music on the radio? Yet in these and many other situations, costs are
substantially increased due to intellectual property. Most of the extra costs
go not to creators but to corporations and to bureaucratic overheads - such
as patent offices and law firms - that are necessary to keep the system of
intellectual property going.

Stimulating
creativity

What
about the incentive to create? Without the possibility of wealth and fame, what
would stimulate creative individuals to produce works of genius? Actually, most
creators and innovators are motivated by their own intrinsic interest, not by
rewards. There is a large body of evidence showing, contrary to popular
opinion, that rewards actually reduce the quality of work.
[26]
If the goal is better and more creative work, paying creators on a piecework
basis, such as through royalties, is counterproductive.

In
a society without intellectual property, creativity is likely to thrive. Most
of the problems that are imagined to occur if there is no intellectual
property - such as the exploitation of a small publisher that renounces
copyright - are due to economic arrangements that maintain inequality. The
soundest foundation for a society without intellectual property is greater
economic and political equality. This means not just equality of opportunity,
but equality of outcomes. This does not mean uniformity and does not mean
levelling imposed from the top: it means freedom and diversity and a situation
where people can get what they need but are not able to gain great power or
wealth by exploiting the work of others. This is a big issue. Suffice it to say
here that there are strong social and psychological arguments in favour of
equality.
[27]

Strategies for change

Intellectual
property is supported by many powerful groups: the most powerful governments
and the largest corporations. The mass media seem fully behind intellectual
property, partly because media monopolies would be undercut if information were
more freely copied and partly because the most influential journalists depend
on syndication rights for their stories.

Perhaps
just as important is the support for intellectual property from many small
intellectual producers, including academics and freelance writers. Although the
monetary returns to these intellectuals are seldom significant, they have been
persuaded that they both need and deserve their small royalties. This is
similar to the way that small owners of goods and land, such as homeowners,
strongly defend the system of private property, whose main beneficiaries are
the very wealthy who own vast enterprises based on many other people's
labour. Intellectuals are enormous consumers as well as producers of
intellectual work. A majority would probably be better off financially without
intellectual property, since they wouldn't have to pay as much for other
people's work.

Another
problem in developing strategies is that it makes little sense to challenge
intellectual property in isolation. If we simply imagine intellectual property
being abolished but the rest of the economic system unchanged, then many
objections can be made. Challenging intellectual property must involve the
development of methods to support creative individuals.

Change thinking

Talking
about "intellectual property" implies an association with physical
property. Instead, it is better to talk about monopolies granted by
governments, for example "monopoly privilege." This gives a better
idea of what's going on and so helps undermine the legitimacy of the
process. Associated with this could be an appeal to free market principles,
challenging the barriers to trade in ideas imposed by monopolies granted to
copyright and patent holders.

As
well, a connection should be forged with ideals of free speech. Rather than
talk of intellectual property in terms of property and trade, it should be
talked about in terms of speech and its impediments. Controls over genetic
information should be talked about in terms of public health and social welfare
rather than property.

The
way that an issue is framed makes an enormous difference to the legitimacy of
different positions. Once intellectual property is undermined in the minds of
many citizens, it will become far easier to topple its institutional supports.

Expose the costs

It
can cost a lot to set up and operate a system of intellectual property. This
includes patent offices, legislation, court cases, agencies to collect fees and
much else. There is a need for research to calculate and expose these costs as
well as the transfers of money between different groups and countries. A
middle-ranking country from the First World, such as Australia, pays far more
for intellectual property - mostly to the US - than it receives. Once
the figures are available and understood, this will aid in reducing the
legitimacy of the world intellectual property system.
[28]

Reproduce protected works

From
the point of view of intellectual property, this is called
"piracy." (This is a revealing term, considering that such language
is seldom used when, for example, a boss takes credit for a subordinate's
work or when a Third World intellectual is recruited to a First World position.
In each case, investments in intellectual work made by an individual or society
are exploited by a different individual or society with more power.) This
happens every day when people photocopy copyrighted articles, tape copyrighted
music, or duplicate copyrighted software. It is precisely because illegal
copying is so easy and so common that big governments and corporations have
mounted offensives to promote intellectual property rights.

Unfortunately,
illegal copying is not a very good strategy against intellectual property, any
more than stealing goods is a way to challenge ownership of physical property.
Theft of any sort implicitly accepts the existing system of ownership. By
trying to hide the copying and avoiding penalties, the copiers appear to accept
the legitimacy of the system.

Openly refuse to cooperate with intellectual property

This
is far more powerful than illicit copying. The methods of nonviolent action can
be used here, including noncooperation, boycotts and setting up alternative
institutions. By being open about the challenge, there is a much greater chance
of focussing attention on the issues at stake and creating a dialogue. By being
principled in opposition, and being willing to accept penalties for civil
disobedience to laws on intellectual property, there is a much greater chance
of winning over third parties. If harsh penalties are applied to those who
challenge intellectual property, this could produce a backlash of sympathy.
Once mass civil disobedience to intellectual property laws occurs, it will be
impossible to stop.

Something
like that is already occurring. Because photocopying of copyrighted works is so
common, there is seldom any attempt to enforce the law against small
violators - to do so would alienate too many people. Copyright authorities
therefore seek other means of collecting revenues from intellectual property,
such as payments by institutions based on library copies.

Already
there is mass discontent in India over the impact of the world intellectual
property regime and patenting of genetic materials, with rallies of hundreds of
thousands of farmers.
[29]
If this scale of protest could be combined with other actions that undermine
the legitimacy of intellectual property, the entire system could be challenged.

Promote non-owned information

A
good example is public domain software, which is computer software that is made
available free to anyone who wants it. The developers of "freeware"
gain satisfaction out of their intellectual work and out of providing a service
to others. The Free Software Foundation has spearheaded the development and
promotion of freeware. It "is dedicated to eliminating restrictions on
people's right to use, copy, modify and redistribute computer
programs" by encouraging people to develop and use free software.

A
suitable alternative to copyright is shareright. A piece of freeware might be
accompanied by the notice, "You may reproduce this material if your
recipients may also reproduce it." This encourages copiers but refuses
any of them copyright.

The
Free Software Foundation has come up with another approach, called
"copyleft." The Foundation states, "The simplest way to make
a program free is to put it in the public domain, uncopyrighted. But this
permits proprietary modified versions, which deny others the freedom to
redistribute and modify; such versions undermine the goal of giving freedom to
all
users. To prevent this, `copyleft' uses copyright in a novel
manner. Typically copyrights take away freedoms; copyleft preserves them. It is
a legal instrument that requires those who pass on a program to include the
rights to use, modify, and redistribute the code; the code and the freedoms
become legally inseparable."
[30]
Until copyright is eliminated or obsolete, innovations such as copyleft are
necessary to avoid exploitation of those who want to make their work available
to others.

Develop
principles to deal with credit for intellectual work

This
is important even if credit is not rewarded financially. This would include
guidelines for not misrepresenting another person's work. Intellectual
property gives the appearance of stopping unfair appropriation of ideas
although the reality is quite different. If intellectual property is to be
challenged, people need to be reassured that misappropriation of ideas will not
become a big problem.

More
fundamentally, it needs to be recognised that intellectual work is inevitably a
collective process. No one has totally original ideas: ideas are always built
on the earlier contributions of others. (That's especially true of this
chapter!) Furthermore, culture - which makes ideas possible - is built
not just on intellectual contributions but also on practical and material
contributions, including the rearing of families and construction of buildings.
Intellectual property is theft, sometimes in part from an individual creator
but always from society as a whole.

In
a more cooperative society, credit for ideas would not be such a contentious
matter. Today, there are vicious disputes between scientists over who should
gain credit for a discovery. This is because scientists' careers and,
more importantly, their reputations, depend on credit for ideas. In a society
with less hierarchy and greater equality, intrinsic motivation and satisfaction
would be the main returns from contributing to intellectual developments. This
is quite compatible with everything that is known about human nature.
[31]
The system of ownership encourages groups to put special interests above
general interests. Sharing information is undoubtedly the most efficient way to
allocate productive resources. The less there is to gain from credit for ideas,
the more likely people are to share ideas rather than worry about who deserves
credit for them.

# # #

For
most book publishers, publishing an argument against intellectual property
raises a dilemma. If the work is copyrighted as usual, this clashes with the
argument against copyright. On the other hand, if the work is not copyrighted,
then unrestrained copying might undermine sales. It's worth reflecting on
this dilemma as it applies to this book.

It
is important to keep in mind the wider goal of challenging the corruptions of
information power. Governments and large corporations are particularly
susceptible to these corruptions. They should be the first targets in
developing a strategy against intellectual property.

Freedom
Press is not a typical publisher. It has been publishing anarchist writings
since 1886, including books, magazines, pamphlets and leaflets. Remarkably,
neither authors nor editors have ever been paid for their work. Freedom Press
is concerned with social issues and social change, not with material returns to
anyone involved in the enterprise.

Because
it is a small publisher, Freedom Press would be hard pressed to enforce its
claims to copyright even if it wanted to. Those who sympathise with the aims of
Freedom Press and who would like to reproduce some of its publications
therefore should consider practical rather than legal issues. Would the copying
be on such a scale as to undermine Freedom Press's limited sales? Does
the copying give sufficient credit to Freedom Press so as to encourage further
sales? Is the copying for commercial or noncommercial purposes?

In
answering such questions, it makes sense to ask Freedom Press. This applies
whether the work is copyright or not. If asking is not feasible, or the copying
is of limited scale, then good judgement should be used. In my opinion, using
one chapter - especially this chapter! - for nonprofit purposes should
normally be okay.

So
in the case of Freedom Press, the approach should be to negotiate in good faith
and to use good judgement in minor or urgent cases. Negotiation and good
judgement of this sort will be necessary in any society that moves beyond
intellectual property.

28.
These two strategies are proposed by Peter Drahos, "Thinking
strategically about intellectual property rights," paper prepared for the
Forum of Parliamentarians on Intellectual Property and the National Working
Group on Patent Laws, 1996.

29.
The magazine
Third
World Resurgence
has regular reports on this issue. See for example Martin Khor, "A
worldwide fight against biopiracy and patents on life,"
Third
World Resurgence,
No. 63, November 1995, pp. 9-11, and the special issues on patenting of life:
No. 57, May 1995 and No. 84, August 1997.